THE BLOG
03/23/2009 07:26 pm ET | Updated May 25, 2011

The Fox and the Henhouse

If The Oprah Winfrey Show can be said to represent a microcosm of the contemporary feminine experience, its recent episodes may well illustrate the limits of our progress in addressing violence against women. At first glance, the show has served as a prominent forum for discussions on domestic violence, dedicating an entire program to the alleged altercation between Rihanna and her boyfriend Chris Brown. As swiftly as Oprah moved to heighten awareness of abuse in personal relationships, though, she displayed considerably less haste to address the issue of workplace assault when interviewing female soldiers at Walter Reed some weeks earlier.

This contrast is entirely consistent with a larger popular reluctance to acknowledge the prevalence of assault and harassment within the military. Though perhaps not as newsworthy as celebrity scandals, the persistence of this trend is hardly a secret. Just a few days ago, in fact, the Department of Defense released its annual Report on Sexual Assault in the Military , revealing both an increase in offenses and a continued pattern of under-prosecution, with only 38% of substantiated cases going to trial.

The Sexual Assault Prevention and Response Office (SAPRO) was born of Congressional outrage in the wake of a 2003 investigative series in The Denver Post. The articles revealed that despite nearly one-third of women in the military reporting episodes of rape or assault, offenders were twice as likely to receive administrative punishments as to be prosecuted criminally. In response to political pressure, the Department of Defense established a task force to develop a comprehensive policy on handling assault cases.

While the resulting policy established a network of sexual assault program offices within the military and required the Department to issue annual statistics, its overall scope is decidedly limited. Although the military must release the number of assault cases reported within its ranks and the percentage of substantiated cases that are prosecuted, these reports have yet to include conviction rates for offenders. They also fail to take account of sexual harassment cases, which are far more prevalent than episodes of rape or assault, with estimates indicating a 70% to 90% rate of incidence.

At the same time, one basic premise has remained unchallenged and unaltered: assault and harassment are ultimately matters of internal military concern. As the system now exists, victims have no avenue for relief when the military fails to take appropriate corrective action in response to their complaints. Neither Title VII of the Civil Rights Act, which penalizes employers for failing to correct workplace harassment, nor the Federal Tort Claims Act, which allows injured parties to sue agents of the government, applies to military personnel. The result is a complete immunity from precisely the sort of outside judicial review that could operate as a real deterrent.

Why, then, is the military still shielded from outside enforcement?

The Equal Employment Opportunity Commission maintains that Title VII does not apply to "uniformed members of the military," an interpretation consistent with three decades of case law. Throughout the country, federal courts have regularly declined to recognize the discrimination claims of servicemembers, arguing that the language and legislative history of the statute betray a Congressional intent to remove this group from the agency's oversight. Such intent, the courts have argued, stems from a reluctance to enmesh civilian courts in areas of military expertise and discretion.

This deference has resulted in a system that places unfettered discretion in the hands of individual unit commanders, all but inviting abuse. While military policy directs that harassment and assault complaints be submitted to special investigative offices, these offices hold no prosecutorial powers and must refer their findings to the subject's commander, who alone decides on corrective action. Whether such action is administrative or punitive is entirely at the discretion of the commander, as is the severity of the censure. Although offenders must at a minimum undergo counseling, any additional corrective action is purely discretionary.

Apart from encouraging under-prosecution, the military's immunity from external review introduces added consequences for veterans suffering from Military Sexual Trauma (MST). Because case records are only retained for a limited period of time, MST claimants seeking disability benefits must inevitably struggle to fulfill the VA requirement of connecting their disability to their service history. In a system notoriously reluctant to award trauma-related claims, these women are at a particular disadvantage.

Enlisting in the military should not require signing away the right to bodily integrity. Congress has long recognized and attacked the scourge of violence in the home, authorizing the Department of Justice to fund and administer a vast interdisciplinary network of services. When it comes to violence against servicewomen, however, legislators continue to defer to the fox to guard its own henhouse, with predictably lamentable results. If the SAPRO findings point to expertise in combating such violence, then perhaps it's time to stop trusting the experts.